E, D & F Man Capital Markets Limited v Come Harvest Limited & others
David Lewis QC and Andrew Dinsmore appeared for the Tenth Defendants (“Straits”) in the Court of Appeal following the first instance decision in E, D & F Man Capital Markets Limited v Come Harvest Limited & Others  EWHC 1661 (Comm).
The underlying case concerns an alleged US$284 million fraudulent conspiracy against ten defendants arising out of forged warehouse receipts said to relate to nickel held by a Singaporean warehouse operator at a number of warehouses in Asia.
The crux of Straits’ challenge was that, at the time that permission to serve out was granted ex parte, the claimant was pursuing a pre-action disclosure application against Straits in Singapore whilst also seeking to join Straits to the English proceedings. This was in circumstances where a jurisdictional pre-condition to obtaining pre-action disclosure in Singapore was an intention to bring substantive proceedings in Singapore.
As such, Straits argued that England was not the proper place to determine the dispute because (i) it appeared that there were going to be parallel proceedings, (ii) the claimant should be held to its choice to bring an action in Singapore, and (iii) the key connecting factors were with Singapore. The claimant argued that by the time of the inter partes hearing the other nine defendants had submitted to the English jurisdiction (and that two were bound by exclusive jurisdiction clauses) with the result that the avoidance of a multiplicity of actions should be an overriding factor in favour of England.
At first instance, the Court considered and distinguished the recent Supreme Court decision of Lungowe v Vedanta  2 WLR 1051 on the relevance of avoidance of multiplicity of proceedings and held that such avoidance was an overriding consideration in favour of England in this case, with the result that the jurisdiction challenge should be dismissed.
Straits was granted permission to appeal by the Court of Appeal, in particular on the grounds that the judge had misapplied Lungowe v Vedanta, failing to give weight to the claimant’s prior choice in favour of Singapore.
The Court of Appeal subsequently dismissed Straits’ appeal on the basis that the first two defendants were bound by the exclusive jurisdiction agreement such that there was no real choice for the claimant, as there had been in Lungowe v Vedanta where all of the defendants could have been sued in Zambia. The Court of Appeal did not put weight on the fact that these jurisdiction agreements existed when the claimants had first brought their action in Singapore for pre-action disclosure.
This case brings important clarification on the impact of Lungowe v Vedanta and raises an interesting question in international conspiracy claims: are all defendants to a conspiracy claim effectively bound by an exclusive jurisdiction agreement to which only a minority of defendants are a party? The general answer appears to be yes: those who are a party to the exclusive jurisdiction agreement must be sued in England, such that to bring an action in any other jurisdiction requires multiplicity, and this judgment holds that in such circumstances there is no real choice to bring an action elsewhere within the meaning of Lungowe v Vedanta. It follows that the action must proceed in England against all defendants.
This may have interesting consequences given (i) the prevalence of exclusive jurisdiction agreements in international commerce (ii) that another jurisdiction may otherwise be more closely connected, (iii) that the ‘necessary or proper party’ defendants will have had no role in agreeing the jurisdiction agreement, (iv) the need for caution where the only basis of jurisdiction is the ‘necessary or proper party’ gateway (as previously noted in AK Investments CJSC v Kyrgyz Mobil  1 WLR, 1804, §73 per Lord Collins), and (v) that it makes no difference that the claimants had indicated a desire to commence an action elsewhere inconsistently with the exclusive jurisdiction agreement.